(1.) THE order dated 26 -3 -2013 [ : 2013 (296) E.L.T. 520 (Tri. -Chen.)] of the learned Single Member has referred for our consideration and resolution the conflict apparently arising from decisions in S.K. Colombowala v. Commissioner of Customs (Import), Mumbai - : 2007 (220) E.L.T. 492 (Tri. -Mumbai), and of a Division Bench in K.I. International Ltd. v. Commissioner of Customs, Chennai - : 2012 (282) E.L.T. 67 (Tri. -Chennai). The decision in S.K. Colombowala (supra), is in effect the decision of a Larger Bench, since the operative judgment is the culmination of a third Member answering a reference arising out of a conflict of views between Members comprising the Division Bench. Be that as it may. It is represented by counsel for the appellant that against the decision in K.I. International Ltd. (supra) an appeal is preferred before the Madras High Court by way of a Civil Miscellaneous Appeal under Section 130 of the Customs Act, 1962; and that all issues arising from the present reference are presented in the appeal before the Madras High Court. Ld. counsel for appellant has also stated that de hors the conflict arising from the decisions in S.K. Colombowala and K.I. International, the appellant is entitled to succeed and the impugned order of penalty (imposed by the adjudicating authority and confirmed by the Commissioner) liable to be set aside for other and independent reasons and on the basis of other binding precedents.
(2.) IN the light of the submissions and in particular since the later decision in K.I. International Ltd. is canvassed for its correctness and vitality in an appeal pending before the Madras High Court, we do not consider it appropriate to answer this reference. The pronouncement of the High Court on due consideration of the rationes of Colombowala and K.I. International, would provide a wider jurisdictional guidance than in an order of reference.